EXHIBIT 10.52
Performance Unit
One-Year Vest
▇.▇. ▇▇▇▇▇▇▇▇ TOBACCO HOLDINGS, INC.
1999 LONG TERM INCENTIVE PLAN
PERFORMANCE UNIT AGREEMENT
DATE OF GRANT: FEBRUARY 4, 2004
W I T N E S S E T H:
1. Grant. Pursuant to the provisions of the 1999 Long Term Incentive
Plan (collectively, the "Plan"), ▇.▇. ▇▇▇▇▇▇▇▇ Tobacco Holdings, Inc. (the
"Company") on the above date has granted to
<> <> (THE "GRANTEE"),
subject to the terms and conditions which follow and the terms and conditions of
the Plan, a target of
<> PERFORMANCE UNITS.
A copy of the Plan is attached and made a part of this Agreement with the same
effect as if set forth in the Agreement itself. All capitalized terms used in
this Agreement shall have the meaning set forth in the Plan, unless otherwise
indicated.
2. Valuation of Performance Units. Each Performance Unit shall have an
initial value of $1,000 (the "Initial Grant Value"). The Compensation Committee
of the Company's Board of Directors (the "Compensation Committee") shall value
each Performance Unit at the end of 2004 using the performance measures set
forth in the grid attached as Exhibit A, but the Compensation Committee shall
have the discretion to reduce the resulting valuation (the "Payment Value"). The
Grantee agrees that the Performance Units granted hereunder are in lieu of an
award under the Company's Annual Incentive Award Plan for 2004.
3. Vesting. (a) The Performance Units shall vest on December 31, 2004,
or if earlier, upon the Grantee's death, Permanent Disability (as defined in the
Company's Long Term Disability Plan), or retirement under a retirement plan of
the Company or a subsidiary of the Company.
(b) Notwithstanding anything in Section 3(a) to the contrary, in the
event of the Grantee's involuntary Termination of Employment without Cause (as
such terms are defined in Section 5 of this Agreement), the number of
Performance Units which shall vest shall be equal to the product of (i) the
original number of Performance Units granted to the Grantee under this Agreement
and (ii) a fraction, the numerator of which shall be
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the number of whole or partial months between January 1, 2004 and the date of
the Grantee's Termination of Employment, and the denominator of which shall be
12.
(c) Upon the Grantee's voluntary Termination of Employment or
Termination of Employment for Cause (as such terms are defined in Section 5 of
this Agreement) prior to the end of a Performance Period, all of the Grantee's
Performance Units shall be cancelled, except to the extent that at the time of
Termination of Employment, the Grantee has an employment or termination
agreement with the Company or one of its subsidiaries which includes
non-cancellation of some or all of the Performance Units.
4. Payment. (a) Payment of Performance Units shall be made only in
Cash. Except under such other circumstances as the Compensation Committee deems
appropriate, no payment shall be made to the Grantee prior to the end of 2004.
Payment of Performance Units shall be made in the amount of the Payment Value as
soon as practicable following the close of the Company books at the end of 2004.
(b) In the event of the death of a Grantee, any payment to which such
Grantee is entitled under the Plan shall be made to the beneficiary designated
by the Grantee to receive the proceeds of any noncontributory group life
insurance coverage provided for the Grantee by the Company or a subsidiary of
the Company ("Group Life Insurance Coverage"). If the Grantee has not designated
such beneficiary, or desires to designate a different beneficiary, the Grantee
may file with the Company a written designation of a beneficiary under the Plan,
which designation may be changed or revoked only by the Grantee, in writing. If
no designation of beneficiary has been made by a Grantee under the Group Life
Insurance Coverage or filed with the Company under the Plan, distribution upon
such Grantee's death shall be made in accordance with the provisions of the
Group Life Insurance Coverage. If a Grantee is no longer an employee of the
Company at the time of death, no longer has any Group Life Insurance Coverage
and has not filed a designation of beneficiary with the Company under the Plan,
distribution upon such Grantee's death shall be made to the Grantee's estate.
5. Termination of Employment. (a) For purposes of this Agreement, the
term "Termination of Employment" shall mean termination from active employment
with the Company or a subsidiary of the Company; it does not mean the
termination of pay and benefits at the end of a period of salary continuation
(or other form of severance pay or pay in lieu of salary).
(b) For purposes of this Agreement, if the Grantee has an employment or
severance agreement, employment shall be deemed to have been terminated for
"Cause" only as such term is defined in the employment or severance agreement.
For purposes of this Agreement, if the Grantee does not have an employment or
severance agreement that defines the term "Cause," the Grantee's employment
shall be deemed to have been terminated for "Cause" if the Termination of
Employment results from the Grantee's: (i) criminal conduct; (ii) deliberate and
continual refusal to perform employment duties on substantially a full time
basis; (iii) deliberate and continual refusal to act in accordance with any
specific lawful instructions of an authorized officer or employee more senior
than the Grantee; or (iv) deliberate misconduct which could be materially
damaging to the Company or any of its business operations without a reasonable
good faith belief by the Grantee that such conduct was in the best interests of
the Company. A Termination of Employment shall not be deemed for Cause hereunder
unless the senior human
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resources executive of the Company shall confirm that any such Termination of
Employment is for Cause. Any voluntary Termination of Employment by the Grantee
in anticipation of an involuntary Termination of Employment for Cause shall be
deemed to be a Termination of Employment for Cause.
6. Transferability. Other than as specifically provided in this
Agreement with regard to the death of the Grantee, this Agreement and any
benefit provided or accruing hereunder shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
change; and any attempt to do so shall be void. No such benefit shall, prior to
receipt thereof by the Grantee, be in any manner liable for or subject to the
debts, contracts, liabilities, engagements or torts of the Grantee.
7. No Right to Employment. Neither the execution and delivery of this
Agreement nor the granting of the Performance Units evidenced by this Agreement
shall constitute any agreement or understanding, express or implied, on the part
of the Company or its subsidiaries to employ the Grantee for any specific period
or in any specific capacity or shall prevent the Company or its subsidiaries
from terminating the Grantee's employment at any time with or without Cause.
8. Change in Corporate Structure. In the event of any stock split,
spin-off, stock dividend, extraordinary cash dividend, stock combination or
reclassification, recapitalization or merger, Change of Control (as defined in
the Plan) or similar event, the Compensation Committee shall make such revisions
to this Agreement as it deems are equitably required. Any adjustment or revision
made by the Compensation Committee shall be final and binding on the Grantee,
the Company and all other interested persons; provided, however, that the
Compensation Committee may not make any such adjustments or revisions that are
adverse to the Grantee without the Grantee's written consent.
9. Application of Laws. The granting of Performance Units under this
Agreement shall be subject to all applicable laws, rules and regulations and to
such approvals of any governmental agencies as may be required.
10. Notices. Any notices required to be given hereunder to the Company
shall be addressed to The Secretary, ▇.▇. ▇▇▇▇▇▇▇▇ Tobacco Holdings, Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, and any notice required to be
given hereunder to the Grantee shall be sent to the Grantee's address as shown
on the records of the Company.
11. Taxes. Any taxes required by federal, state or local laws to be
withheld by the Company in respect of the grant of Performance Units or payment
of the Payment Value hereunder shall be paid to the Company by the Grantee by
the time such taxes are required to be paid or deposited by the Company. The
Grantee hereby authorizes the necessary withholding by the Company to satisfy
such tax withholding obligations prior to delivery of the Payment Value.
12. Administration and Interpretation. In consideration of the grant of
Performance Units hereunder, the Grantee specifically agrees that the
Compensation Committee shall have the exclusive power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation
and application of the Plan and Agreement as are consistent therewith and to
interpret or revoke any such rules. All
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actions taken and all interpretation and determinations made by the Compensation
Committee shall be final, conclusive, and binding upon the Grantee, the Company
and all other interested persons. No member of the Compensation Committee shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or the Agreement. The Compensation Committee
may delegate its interpretive authority to an officer or officers of the
Company.
13. Amendment. This Agreement is subject to the Plan, a copy of which
is attached. The Board of Directors may amend the Plan and the Compensation
Committee may amend this Agreement at any time and in any way, except that any
amendment of the Plan or this Agreement that would impair the Grantee's rights
under this Agreement may not be made without the Grantee's written consent.
14. Obligations of Grantee. (a) In consideration of the grant of
Performance Units hereunder, the Grantee, while both actively employed and in
the event of Grantee's Termination of Employment for any reason, specifically
agrees that within the term of this grant or within one year following the
payment of any amounts pursuant to the grant, if later: (i) the Grantee will
personally provide reasonable assistance and cooperation to the Company in
activities related to the prosecution or defense of any pending or future
lawsuits or claims involving the Company; (ii) the Grantee will promptly notify
the Company upon receipt of any requests from anyone other than an employee or
agent of the Company for information regarding the Company, or if the Grantee
becomes aware of any potential claim or proposed litigation against the Company;
(iii) the Grantee will refrain from providing any information related to any
claim or potential litigation against the Company to any non-Company
representatives without either the Company's written permission or being
required to provide information pursuant to legal process; (iv) the Grantee will
not disclose or misuse any confidential information or material concerning the
Company; and (v) the Grantee will not engage in any activity contrary or harmful
to the interests of the Company. In further consideration of the grant of
Performance Units hereunder, the Grantee specifically agrees that if required by
law to provide sworn testimony regarding any Company-related matter: the Grantee
will consult with and have Company designated legal counsel present for such
testimony (the Company will be responsible for the costs of such designated
counsel); the Grantee will confine his testimony to items about which the
Grantee has knowledge rather than speculation, unless otherwise directed by
legal process; and the Grantee will cooperate with the Company's attorneys to
assist their efforts, especially on matters the Grantee has been privy to,
holding all privileged attorney-client matters in strictest confidence.
(b) If the Company reasonably determines that the Grantee has
materially violated any of the Grantee's obligations under this Agreement, then
this Grant shall terminate, effective the date on which such violation began
(unless otherwise terminated sooner), and the Company may demand the return of
any amount paid to the Grantee hereunder and the Grantee hereby agrees to return
such amounts upon such demand. If after such demand the Grantee fails to return
such amounts, the Grantee acknowledges that the Company has the right to deduct
from any amounts the Company owes to the Grantee (including, but not limited to,
wages or other compensation), or to commence judicial proceedings against the
Grantee, to recover such amounts and any and all of its attorney's fees and
costs.
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15. GOVERNING LAW. THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAWS.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and
the Grantee have executed this Agreement as of the Date of Grant first above
written.
▇.▇. ▇▇▇▇▇▇▇▇ TOBACCO HOLDINGS, INC.
By:_________________________________
Authorized Signatory
__________________________________
Grantee
Grantee's Taxpayer Identification Number:
__________________________________
Grantee's Home Address:
__________________________________
__________________________________
__________________________________
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